The Ten Commandments, religious freedom and (!) hazardous materials transportation

With Shavuos behind us, we’ve finished celebrating the Ten Commandments. This section of Torah is moving and its importance cannot be exaggerated, almost. Still, we move on. For most of us, the whole of Torah cannot be reduced either to 10 Utterances nor to a single précis (e.g., Hillel’s version of a Golden Rule, bShab 31a).

Unfortunately, some Other People have managed to exaggerate even the importance of the Ten Commandments. Who? Consider those who would deploy The Ten Commandments in a monumental effort to etch a particularist reading of “Judeo-Christian” values into the base of the U.S. legal system. And I don’t mean a Mishpat ‘Ivri, American style. Instead, I refer to Christian theocratic efforts to throw American jurisprudence back to the nineteenth century, when states had established churches and “religious freedom” meant, in its crudest form, the freedom to be Protestant.

Today, religious freedom in the USA is “Good for the Jews” whether we be Black Hats or baseball hats. Not that every judicial decision has favored or recognized Jewish needs. Indeed, practice-oriented religions like Judaism(s) are far less protected than belief-based religions (e.g., Protestantism).[1] Arguably, the freedom of religion is not a necessary condition for our flourishing; as W. F. Sullivan explains in a "timely and iconoclastic" new book, it may be impossible to define religious freedom: the federal government could just as well protect Jewish et alia practices through other constitutional freedoms.

How might U.S. law better accommodate communal religious practices? I’ve got various ideas and would welcome yours, too. Meanwhile, it occurs to me that a recent daf yomi passage might jog our thinking on the subject:

If a spark flies out from under a blacksmith's hammer and went and damaged another's property, the blacksmith is liable. If a camel laden with flax was passing through the public domain and its flax protruded into a shop [a private domain] and was ignited by the shopkeeper's light and the burning flax set a mansion outside ablaze, the camel's owner is liable for all damage to the building. If, however, the shopkeeper placed his light outside the shop in a public domain, the shopkeeper is liable. R'Yehudah says: in the case of a Chanukah light, the shopkeeper is not liable. . . . (bShab 21b).

Here, flax is a flammable, almost hazardous material. Ordinarily, when judging a hazardous material fire, the sages hold liable the owner (e.g., shopkeeper) of a flame that had been unwisely placed in a public thoroughfare. So don’t light a torch as the gasoline trucks roll by. However, according to Rabbi Yehudah, Jewish law should make an exception for Chanukah lamps.

Can we say that here that rabbinic “civil law” should accommodate the exercise of the Jewish "religion"? By assuming that adults take reasonable precautions, Rabbi Yehudah expects camel drivers – and the rest of us – to adjust to the practice of Chanukah lighting.

Now, would we agree that Jewish law (halakhah) should adjust to the Chanukah lights as a mitzvah, a special religious duty? Or, further, is halakhah to be shaped by any analogous cultural practices? For instance, consider other social practices that require caution. Suppose a shopkeeper places in the public domain not Chanukah lights, but another predictable hazard, like Xmas lights. Would the shopkeeper still not be liable?

(Haven’t looked into post-Talmudic Jewish law yet, which does not accept R. Yehudah's minority opinion [Shulkhan Arukh, Rambam]. Nonetheless, it is safe to say that such questions about the exercise of religious practices cannot be resolved by the rabbis – or by U.S. judges – simply by resorting to the Ten Commandments.)

Good shabbos,

Kaspit      כספית

P.S. Yes, nowadays hazardous materials transport is more complex. For instance, to what extent should the camel-driver/owner be held liable for their ruptured tanks in the recent chlorine-laden railroad accident? Or are the workers to blame, as the Secretary of Transportation Norman Mineta claims?

P.S.S. Thanks to Daf Am Haaretz for the Artscrollian translation and the topic.

[1] Hence, wearing a kippah is not constitutionally protected.

Comments

[ADDeRabbi]

Topic that comes up all the time which would relate to the candle issue - in college dormitories (even YU), where fire-code prohibits lighting live fire on the dormitory premises. Should an exception be made for Chanukah?

[kaspit]

Thanks your comment. It reminds me that our first son was born in a U.S. hospital on Chanukah erev Shabbos. Luckily, the nurses let us light.

For YU dormitories, I didn’t look up the specific NY regs. Do you think the rules should be different for Chanukah than Shabbos? Some campuses allow candle-lighting by approval or in special locations. Rutgers seems to think that electric candles would be acceptiable (!). See below. For general info, National Fire Protection Agency has a guide for campus safety. Here’s an excerpt:

Candles and Incense. Information on candle fires is availablefrom the NFPA report Candle Fires in U.S. Homes and OtherOccupancies: A Statistical Analysis. From 1994 to 1998, candle fires in 140 structure fires a year caused an average of $2.3 million per year in direct damage in dormitories or Greek housing. Overall, candle use and candle fires have been increasing.As with smoking, a number of institutions have banned candles from their residence halls. Others are permitting candles within the rooms, but they cannot be lit.An issue to address is that of religious ceremonies involv-ing candles. Several institutions have continued their outright ban on candles, whereas others make provisions for students using them in religious ceremonies.Some of the conditions that are imposed include the following:
• A special permit must be obtained.
• The candles must be burned in a specific location, such asa common area. The logic
behind this is that there is less of a combustible fuel load in the common areas
than might befound in a student’s room.
• The candles must rest on a noncombustible surface.
• The candles must not be left unattended

Source: http://www.nfpa.org/assets/files/PDF/Research/FPHcampusfiresafety.pdf

Rutgers: “Candles of any type (The use of candles in university housing rooms, for religious purposes, is prohibited due to the fire hazard this practice creates. Alternative appliances, electrically powered, exist to permit the resident to observe religious holidays without creating a fire hazard.)” http://rues.rutgers.edu/rhf.html

Wellesley: Candles and other open flames are prohibited. Candles may be used for normally recognized religious services only if pre-approved by EH&S and Housing (for Dorms). http://www.wellesley.edu/Activities/homepage/freeman/faq.html

Amherst: Candles for religious services and birthday parties must be approved in advance by the Amherst College Fire Marshal. Candles, incense, and similar items may not be burned or lit in any residence hall. http://www.amherst.edu/~ehs/fire/fire_safety.htm#candles

Ithaca: Candles are prohibited in all residential facilities (other than preapproved areas designated for observance of religious holidays and ceremonies). http://www.ithaca.edu/safety/pdfs/flyer_appliances.pdf